Are Child Custody Rulings in Divorce Based on Personal Preference? One Judge Says they Are.

We reviewed the S.C. Supreme Court case Adoptive Parents v. Baby Girl and asked the question, Do U.S. Courts Protect Indian Children Better than they Protect non-Indian Children? We came to the conclusion that many of the same reasons that they created the ICWA[i], also exist in divorce cases.

Judge Garfinkel, in a letter he wrote to parents, published by Charleston Law called “Child Custody Claims: A View from the Bench on Jun 12, 2012, reveals that Family Law is not Based on Evidence  but on a Judge’s Personal Preference for the Parent they Like Better.[ii] He appears to be claiming that rulings are based on personal opinions, preferences, and bias. This is very unpredictable and inconsistent. The judge never even talks about protecting each parents’ rights or that each parent has equal rights. The judge never even mentions that any constitutional law is involved in his decision making!

And the judge admits “The pain that has been caused here arises from the conflict between each of you and has nothing to do with the children.” Why then does the court use the children to punish the parent in divorce? When a court does this are they not punishing the children for what they have already admitted “has nothing to do with the children”?

If the U.S. Supreme Court and S.C. Supreme Court in Adoptive Parent v. Baby Girl know “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children”[iii] and that by removing them from their biological parents or parent prevents the passing on of their beliefs, customs, and culture, why would any state level judge believe that this would be any different for divorce parents? We are protected under the same U.S. Constitution that they claim allowed them to create the ICWA for Indian tribes. And under substantive law, the Supreme Court has determined that each parent is a separate individual deserving of the highest level of protections regarding rights protected by this constitution. 

It is our contention that all children, regardless of whether they are Indian or not, are the most vital resource to all fit parents. In divorce, this is no different. Yet family court judges continue to get away with tearing down one parent’s rights to their children and right to equal time without the necessary due process and the level of evidentiary standards required. Family court judges are taking our most vital right in life, the right to rear your own child, and using another vital right in life, the right to divorce, as justification to avoid all other protections of the law afforded to biological parents. Divorce parents, at alarming rates, are suffering what happened to Indian parents, discrimination of their parenting practices resulting in the unwarranted removal of their rights to their children. An unwarranted deprivation of parental rights to divorce parents is de facto eliminating their ability to parent in the manner that has been guaranteed them under the constitution.

It’s important to note that the ICWA is important for Indian tribes because their children were being completely removed from Indian families and placed into adoptive care even more often than it was happening to non-Indian families. This made it necessary for the U.S. Congress to use “its power under the Indian Commerce Clause of the United States Constitution, U.S. Const. art. 1, § 8,” to create the ICWA as an added layer of protection for the preservation of tribal rights. Divorcing and divorced parents are also discriminated against. Unwarranted removing a child to the primary care of the other parent is de facto preventing the other parent from exercising their parental rights in any meaningful or parental authoritative way expressly protected substantively under the U.S. Constitution.

Placing a child under the primary control of one parent through the use of unchecked and unsubstantiated use of the state’s power is discriminatory and preventing the other parent from passing on their beliefs, customs, and culture to that child. “…asking your attorney to convert your convictions and beliefs into evidence that will result in a verdict in your favor…”[iv] is how Judge Garfinkel describes his job in family court proceedings. “Then I must decide which of you is the better parent.” We have found nothing in substantive law or the U.S. Constitution that would support this.

Judge Garfinkel appears to be trying to help parents by sharing his understanding and vast experience with how the family court system is run. In the process, he has shown us further evidence that the family court system has run amuck. It is running family law courts the way that this judge describes that causes families so much damage and devastation. Running courts of law like this causes grave concern that parents and children are being deprived constitutional protection at alarming numbers. We go further to say that it is not “egos” where we should be concerned, it is judges not updating their practices in their courtroom to comply with the U.S. Constitution, judges not understanding their job in today’s society.

 


[i] ICWA is Indian Child Welfare Act

[ii] ChildCustodyClaims:AViewfromtheBench Jun12,2012| www.charlestonlaw.net/charleston-sc-divorce-lawyers/ “They have to prove to me which is the better parent.” This is based on though converting convictions and beliefs into evidence, not based in real evidence, as the judge goes into explaining that custody battles are not based on proving that something has happened, which it should be. No parent should ever be subject to this type of scrutinizing judgment regarding their choices within the law. The other parent should be proving that the parent being attacked is warranted by a violation of laws and that the parent is unfit or has placed the child in clear and convincing danger. But this article falls way short of that, the judge admits this, and decides that it is egos that are driving this rather than protection of parental rights.

[iii] Adoptive Couple v. Baby Girl, 731 SE 2d 550 – SC: Supreme Court 2012. “(3) and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe; (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”

[iv] ChildCustodyClaims:AViewfromtheBench Jun12,2012| www.charlestonlaw.net/charleston-sc-divorce-lawyers/ Judge Garfinkel goes on in this article to say “Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation,” and say that you had to prove this to someone who had never seen either painting and you weren’t allowed to show the paintings to them? I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll. This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but they have no way of showing me exactly how you parent.”